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This is a Bill, not an Act. For current law, see the Acts databases.
2004
The Parliament of
the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Water
Efficiency Labelling and Standards Bill
2004
No. ,
2004
(Environment and
Heritage)
A Bill for an Act to provide for
water efficiency labelling and the making of water efficiency standards, and for
related purposes
Contents
A Bill for an Act to provide for water efficiency
labelling and the making of water efficiency standards, and for related
purposes
The Parliament of Australia enacts:
This Act may be cited as the Water Efficiency Labelling and Standards
Act 2004.
(1) Each provision of this Act specified in column 1 of the table
commences, or is taken to have commenced, in accordance with column 2 of the
table. Any other statement in column 2 has effect according to its
terms.
|
Commencement information |
||
|---|---|---|
|
Column 1 |
Column 2 |
Column 3 |
|
Provision(s) |
Commencement |
Date/Details |
|
1. Sections 1 and 2 and anything in this Act not elsewhere covered by
this table |
The day on which this Act receives the Royal Assent. |
|
|
2. Sections 3 to 77 |
The 28th day after the day on which this Act receives the Royal
Assent. |
|
Note: This table relates only to the provisions of this Act
as originally passed by the Parliament and assented to. It will not be expanded
to deal with provisions inserted in this Act after assent.
(2) Column 3 of the table contains additional information that is not part
of this Act. Information in this column may be added to or edited in any
published version of this Act.
The objects of this Act are as follows:
(a) to conserve water supplies by reducing water consumption;
(b) to provide information for purchasers of water-use and water-saving
products;
(c) to promote the adoption of efficient and effective water-use and
water-saving technologies.
(1) This Act binds the Crown in each of its capacities.
(2) This Act does not make the Crown liable to be prosecuted for an
offence.
This Act extends to every external Territory other than Norfolk
Island.
Chapter 2 of the Criminal Code applies to all offences
against this Act.
Note: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
In this Act, unless the contrary intention appears:
acquisition of property has the same meaning as in paragraph
51(xxxi) of the Constitution.
affected person has the meaning given by subsections 69(2)
and (3).
agency:
(a) in relation to the Commonwealth, includes the following:
(i) an Agency within the meaning of the Financial Management and
Accountability Act 1997;
(ii) a body corporate established for a public purpose under a law of the
Commonwealth; and
(b) in relation to a State or a Territory, includes the
following:
(i) a Department of State (however described) of the State or
Territory;
(ii) a body corporate established for a public purpose under a law of the
State or Territory.
applicable WELS standard has the meaning given by
section 32.
Commonwealth Minister means the Minister appointed to
administer the Department of State of the Commonwealth that deals with the
matters to which this Act relates.
Commonwealth Secretary means the Secretary of the Department
of State of the Commonwealth that deals with the matters to which this Act
relates.
corresponding State-Territory law has the meaning given by
section 12.
damage, in relation to data, includes damage by erasure of
data or addition of other data.
evidential material means any thing that may be relevant to
the investigation or prosecution of an offence against this Act.
Executive Agency has the same meaning as in the Public
Service Act 1999.
just terms has the same meaning as in paragraph 51(xxxi) of
the Constitution.
occupier, in relation to premises, includes a person who
apparently represents the occupier of the premises.
offence against this Act includes:
(a) an offence against the regulations; or
(b) an offence against section 6 of the Crimes Act 1914;
or
(c) an offence against section 11.1, 11.4 or 11.5 of the Criminal
Code; or
(d) an offence against section 136.1, 137.1 or 137.2 of the
Criminal Code.
participating State or Territory has the meaning given by
subsection 18(5).
person who has WELS information has the meaning given by
section 60.
registered means registered under a WELS standard.
Regulator has the meaning given by section 21.
reviewable decision has the meaning given by subsection
69(1).
reviewable State-Territory decision has the meaning given by
subsection 17(2).
Statutory Agency has the same meaning as in the Public
Service Act 1999.
supply means:
(a) supply for consideration; or
(b) offer to supply for consideration.
water-saving product means a device, appliance or fitting
that:
(a) is not a water-use product; and
(b) is designed to operate in place of a water-use product.
water-use product means a device, appliance or fitting
through which, or into which, water flows as part of its normal
operation.
WELS Account means the Special Account established by
subsection 64(1).
WELS business premises means WELS premises that are open to
the public on a regular basis.
WELS inspector means a person appointed under subsection
45(1).
WELS-labelled has the meaning given by subsection
20(1).
WELS premises means premises used for, or in connection with,
the supply of one or more WELS products.
WELS product has the meaning given by subsection
18(1).
WELS scheme means the water efficiency labelling and
standards scheme established by this Act and corresponding State-Territory
laws.
WELS standard has the meaning given by
section 19.
It is the intention of the Parliament that this Act form a part of a
cooperative scheme between the Commonwealth and the States and Territories to
provide for national water efficiency labelling and standards.
This Act applies with respect to the following:
(a) corporations to which paragraph 51(xx) of the Constitution
applies;
(b) trade or commerce:
(i) with other countries; or
(ii) among the States; or
(iii) between a State and a Territory; or
(iv) between 2 Territories;
(c) the Commonwealth and agencies of the Commonwealth;
(d) things authorised by the legislative power of the Commonwealth under
paragraph 51(xxxix) of the Constitution, so far as it relates to the matters
mentioned in paragraphs (a) to (c) of this section.
The provisions of this Act are in addition to, and not in substitution
for, the requirements of any other law of the Commonwealth.
This Act is not intended to exclude or limit the operation of a law of a
State or Territory to the extent that the law is capable of operating
concurrently with this Act.
(1) For the purposes of this Act, corresponding State-Territory
law means a law of a State or Territory:
(a) whose operation involves the use of determinations made under
section 18 of this Act; and
(b) that is declared by the Commonwealth Minister, in writing, to
correspond to this Act;
and includes such a law as amended from time to time.
(2) A declaration under paragraph (1)(b) is a legislative instrument
for the purposes of the Legislative Instruments Act 2003 but neither
section 42 of that Act nor Part 6 of that Act applies to the
instrument.
(1) A corresponding State-Territory law may confer functions or powers, or
impose duties, on the Regulator.
Note: Section 15 sets out when such a law imposes a
duty on the Regulator.
(2) A corresponding State-Territory law may confer functions or powers, or
impose duties, on WELS inspectors.
Note: Section 15 sets out when such a law imposes a
duty on WELS inspectors.
(3) Subsections (1) and (2) do not authorise the conferral of a
function or power, or the imposition of a duty, by a corresponding
State-Territory law to the extent to which:
(a) the conferral or imposition, or the authorisation, would contravene
any constitutional doctrines restricting the duties that may be imposed on the
Regulator or WELS inspectors; or
(b) the authorisation would otherwise exceed the legislative power of the
Commonwealth.
(4) The Regulator or a WELS inspector cannot perform a duty or function,
or exercise a power, under a corresponding State-Territory law unless the
conferral of the function or power, or the imposition of the duty, is in
accordance with an agreement between the Commonwealth and the State or Territory
concerned.
Application
(1) This section applies if a corresponding State-Territory law purports
to impose a duty on the Regulator or WELS inspectors.
Note: Section 15 sets out when such a law imposes a
duty on the Regulator or WELS inspectors.
State or Territory legislative power sufficient to support
duty
(2) The duty is taken not to be imposed by this Act (or any other law of
the Commonwealth) to the extent to which:
(a) imposing the duty is within the legislative powers of the State or
Territory concerned; and
(b) imposing the duty by the law of the State or Territory is consistent
with the constitutional doctrines restricting the duties that may be imposed on
the Regulator or WELS inspectors.
Note: If this subsection applies, the duty will be taken to
be imposed by force of the law of the State or Territory (the Commonwealth
having consented under section 13 to the imposition of the duty by that
law).
Commonwealth legislative power sufficient to support duty but State or
Territory legislative powers are not
(3) If, to ensure the validity of the purported imposition of the duty, it
is necessary that the duty be imposed by a law of the Commonwealth (rather than
by the law of the State or Territory), the duty is taken to be imposed by this
Act to the extent necessary to ensure that validity.
(4) If, because of subsection (3), this Act is taken to impose the
duty, it is the intention of the Parliament to rely on all powers available to
it under the Constitution to support the imposition of the duty by this
Act.
(5) The duty is taken to be imposed by this Act in accordance with
subsection (3) only to the extent to which imposing the duty:
(a) is within the legislative powers of the Commonwealth; and
(b) is consistent with the constitutional doctrines restricting the duties
that may be imposed on the Regulator or WELS inspectors.
(6) Subsections (1) to (5) do not limit section 13.
For the purposes of sections 13 and 14, a corresponding
State-Territory law imposes a duty on the Regulator or WELS
inspectors if:
(a) the law confers a function or power on the Regulator or WELS
inspectors; and
(b) the circumstances in which the function or power is conferred give
rise to an obligation on the Regulator or WELS inspectors to perform the
function or to exercise the power.
(1) If:
(a) an act or omission is an offence against this Act and is also an
offence against a law of a State or Territory; and
(b) the offender has been punished for the offence under the law of the
State or Territory;
the offender is not liable to be punished for the offence under this
Act.
(2) If a person has paid, or been ordered to pay, a pecuniary penalty
under a law of a State or Territory, the person is not liable to a pecuniary
penalty under this Act in respect of the same conduct.
(1) Application may be made to the Administrative Appeals Tribunal for
review of a reviewable State-Territory decision.
(2) A decision made by the Regulator in the performance of a function or
the exercise of a power conferred by a corresponding State-Territory law is a
reviewable State-Territory decision for the purposes of this
section if:
(a) the law under which the decision was made provides for review by the
Administrative Appeals Tribunal; and
(b) the decision is declared by the regulations to be a reviewable
State-Territory decision for the purposes of this section.
(3) For the purposes of this section, the Administrative Appeals
Tribunal Act 1975 has effect as if a corresponding State-Territory law were
an enactment.
(1) The Commonwealth Minister may, by writing and in accordance with
subsection (4), determine that water-use or water-saving products of a
specified kind are WELS products.
(2) A determination under subsection (1) must set out the WELS
standard for the products.
(3) A determination under subsection (1) is a legislative instrument
for the purposes of the Legislative Instruments Act 2003 and, despite
subsection 44(1) of that Act, section 42 of that Act applies to the
determination. However, Part 6 of that Act does not apply to the
determination.
(4) Before making a determination under subsection (1), the
Commonwealth Minister must have agreement to the terms of the determination from
a majority of the participating States and Territories.
(5) A State or Territory is a participating State or
Territory if there is a corresponding State-Territory law for the State
or Territory.
(1) The WELS standard must set out:
(a) criteria for rating the products in relation to either or both of the
following:
(i) water efficiency;
(ii) general performance; and
(b) requirements in relation to communicating such ratings on product
labels.
(2) The WELS standard may require the products to be
registered for the purposes of specified supplies of the product.
(3) If the WELS standard requires the products to be registered, the
WELS standard may also require either or both of the
following:
(a) that the products comply with specified minimum water efficiency
requirements for the purposes of specified supplies of the product;
(b) that the products comply with specified minimum general performance
requirements for the purposes of specified supplies of the product.
(4) The WELS standard may require products that are
registered (whether required to be registered or not) to be WELS-labelled for
the purposes of specified supplies of the product.
(1) A product is WELS-labelled if it is labelled in
accordance with requirements set out in the WELS standard for products of that
kind.
(2) Such requirements may relate to one or more of the
following:
(a) the characteristics, contents, placement and quality of labels
attached to products or displayed on product packaging;
(b) documents or other material used for, or provided in connection with,
the supply of the product;
(c) advertising the product.
The Commonwealth Secretary is the Regulator.
The Regulator has the following functions:
(a) to administer the WELS scheme;
(b) to undertake or commission research in relation to water-use and
water-saving products;
(c) to provide advice in relation to determining that water-use or
water-saving products are WELS products;
(d) to undertake or commission research in relation to WELS
standards;
(e) to assist in the development of WELS standards;
(f) to provide information and advice to the Commonwealth Minister about
the operation of WELS standards;
(g) to provide information and advice to:
(i) the Commonwealth Minister; and
(ii) the States and Territories; and
(iii) the public;
about the operation of the WELS scheme;
(h) to undertake or commission research in relation to the effectiveness
of WELS standards in relation to reducing water usage;
(i) such other functions as are conferred on the Regulator by this Act,
the regulations or any other law.
Subject to this Act, the Regulator has power to do all things necessary
or convenient to be done for or in connection with the performance of the
Regulator’s functions.
The Regulator may make an arrangement with an agency of the Commonwealth
or of a State or Territory for the services of officers or employees of the
agency to be made available to assist the Regulator in the performance of the
functions or duties, or the exercise of the powers, of the Regulator.
(1) The Regulator may, by writing, delegate one or more of the
Regulator’s powers or functions under this Act to one or more of the
following:
(a) an officer or employee of an agency of the Commonwealth;
(b) an officer or employee of an agency of a State or Territory.
(2) The Regulator may, by writing, delegate one or more of the
Regulator’s powers or functions under a corresponding State-Territory law
to one or more of the following:
(a) an officer or employee of an agency of the Commonwealth;
(b) an officer or employee of an agency of a State or Territory.
(3) However, the Regulator must not delegate a power or function, under
subsection (1) or (2), to an officer or employee of an agency of a State or
Territory without the agreement of the State or Territory.
(4) A delegate of the Regulator is, in the exercise of the
delegate’s delegated powers and functions, subject to the
Regulator’s directions.
(1) The manufacturer of a WELS product may apply in writing to the
Regulator for registration of the product.
Note 1: A WELS standard may require products to be
registered for the purposes of specified supplies: see subsection 19(2). It is
an offence to supply an unregistered product if the product is required to be
registered for the purposes of the supply: see section 33.
However, WELS products can be registered even if
registration is not required, but, once a product is registered, WELS-labelling
requirements may apply: see subsection 19(4). It is an offence to supply a
product that is not WELS-labelled if WELS-labelling requirements apply: see
section 34.
Note 2: Part 7.4 of the Criminal Code provides
offences in relation to false or misleading statements.
(2) The regulations may prescribe circumstances in which a person who is
not the manufacturer of a WELS product is taken to be the manufacturer of the
product for the purposes of subsection (1) and paragraph
31(3)(b).
(1) An application for registration of a WELS product must be made in the
manner and form determined in writing by the Commonwealth Minister, and must be
accompanied by:
(a) any documentation (including test results and sample labels) specified
in the determination; and
(b) any registration fee specified in the determination.
(2) A determination under subsection (1) may also specify conditions
that must be complied with in order for a product to remain
registered.
(3) A determination under subsection (1) is a legislative instrument
for the purposes of the Legislative Instruments Act 2003 and, despite
subsection 44(1) of that Act, section 42 of that Act applies to the
determination. However, Part 6 of that Act does not apply to the
determination.
(1) If:
(a) an application is made for registration of a WELS product;
and
(b) the Regulator does not refuse to register the product under
section 29;
the Regulator must, by notice published in the Commonwealth of Australia
Gazette, register the product.
(2) The Regulator must give the applicant written notice of the
registration or refusal.
(3) If, at the end of the period of 3 months that begins on the day on
which the application is made:
(a) a notice registering the product has not been published in the
Commonwealth of Australia Gazette; and
(b) the applicant has not been notified, under subsection (2), that
the Regulator has refused to register the product;
the Regulator is taken to have refused to register the product.
The Regulator may refuse to register a WELS product if:
(a) the application is not made in accordance with the applicable
determination under subsection 27(1); or
(b) the Regulator is not satisfied that all of the information provided in
the application is accurate; or
(c) the product does not satisfy a minimum water efficiency or minimum
general performance requirement that the product is required to satisfy by the
WELS standard for products of that kind.
(1) Unless subsection (2) applies, a WELS product that is registered
remains registered until the first of the following happens:
(a) the registration is cancelled or suspended under
section 31;
(b) the period of 5 years that begins on the day on which the product is
registered ends.
(2) If:
(a) a WELS product is registered under a WELS standard (the first
WELS standard); and
(b) the first WELS standard is replaced;
the product remains registered under the first WELS standard until the
first of the following happens:
(c) the product is registered under a WELS standard other than the first
WELS standard;
(d) the period of one year that begins on the day on which the first WELS
standard was replaced ends.
(3) The Commonwealth Minister may, by writing, determine that, for
specified purposes, the period of one year mentioned in paragraph (2)(d) is
extended by a further specified period.
(4) A determination under subsection (3) is a legislative instrument
for the purposes of the Legislative Instruments Act 2003 and, despite
subsection 44(1) of that Act, section 42 of that Act applies to the
determination. However, Part 6 of that Act does not apply to the
determination.
(1) The Regulator may, by notice published in the Commonwealth of
Australia Gazette, cancel or suspend the registration of a WELS product
if:
(a) registration conditions are not complied with (see subsection 27(2));
or
(b) the Regulator is satisfied that information provided in the
application for registration of the product:
(i) was not accurate at the time of the application; or
(ii) is no longer accurate because changes have been made to the
product.
(2) If the Regulator cancels or suspends the registration of a WELS
product under subsection (1), the Regulator must give written notice of the
cancellation or suspension to the person on whose application the product was
registered.
(3) The Regulator must, by notice published in the Commonwealth of
Australia Gazette, cancel the registration of a WELS product if:
(a) the WELS standard included in the most recent determination made under
section 18 that relates to products of that kind does not require the
product to be registered; and
(b) the manufacturer on whose application the product was registered makes
a written request to the Regulator for the registration to be
cancelled.
(1) The applicable WELS standard for a WELS product that is
registered is the WELS standard under which the product is registered.
(2) The applicable WELS standard for a WELS product that is
not registered is the WELS standard included in the most recent determination
made under section 18 that relates to products of that kind.
(1) A person commits an offence if:
(a) the person supplies a WELS product; and
(b) the applicable WELS standard requires the product to be registered for
the purposes of the supply; and
(c) the product is not registered.
Penalty: 60 penalty units.
(2) Subsection (1) is an offence of strict liability.
(1) A person commits an offence if:
(a) the person supplies a WELS product; and
(b) the product is registered; and
(c) the applicable WELS standard requires registered products to be
WELS-labelled for the purposes of the supply; and
(d) the product is not WELS-labelled.
Penalty: 60 penalty units.
(2) Subsection (1) is an offence of strict liability.
(1) A person commits an offence if:
(a) the person supplies a WELS product; and
(b) the applicable WELS standard requires the product:
(i) to be registered for the purposes of the supply; and
(ii) to comply with minimum water efficiency requirements for the purposes
of the supply; and
(c) the product does not comply with those minimum water efficiency
requirements.
Penalty: 60 penalty units.
(2) Subsection (1) is an offence of strict liability.
(1) A person commits an offence if:
(a) the person supplies a WELS product; and
(b) the applicable WELS standard requires the product:
(i) to be registered for the purposes of the supply; and
(ii) to comply with minimum general performance requirements for the
purposes of the supply; and
(c) the product does not comply with those minimum general performance
requirements.
Penalty: 60 penalty units.
(2) Subsection (1) is an offence of strict liability.
(1) A person commits an offence if the person:
(a) supplies a WELS product; and
(b) uses a WELS standard, or information included in a WELS standard, for,
or in relation to, the supply of the product; and
(c) uses the standard, or information, in a manner that is inconsistent
with the standard.
Penalty: 60 penalty units.
(2) Subsection (1) is an offence of strict liability.
Note: Section 39 sets out circumstances in which
information is used for, or in relation to, the supply of a
product.
(1) A person commits an offence if:
(a) the person uses information for, or in relation to, the supply of a
WELS product; and
(b) the information is inconsistent with the information contained in the
applicable WELS standard for the product.
Penalty: 60 penalty units.
(2) Subsection (1) is an offence of strict liability.
Note: Section 39 sets out circumstances in which
information is used for, or in relation to, the supply of a
product.
(1) For the purposes of sections 37 and 38, information is used for,
or in relation to, the supply of a product if the information is conveyed on, or
by:
(a) a label attached to the product; or
(b) the packaging in which the product is supplied; or
(c) any document or other material used for, or provided in connection
with, the supply of the product; or
(d) any advertising that relates to the product.
(2) Subsection (1) does not limit the general meaning of words used
in sections 37 and 38.
(1) The regulations may provide for a person who is alleged to have
committed an offence against Part 7 to pay a penalty to the Commonwealth as
an alternative to prosecution.
(2) The penalty must not exceed one-fifth of the maximum fine that a court
could impose on the person as a penalty for that offence.
(1) The Regulator may publicise, in any way he or she thinks appropriate,
an offence against this Act for which a person has been convicted.
(2) This Division does not:
(a) limit the Regulator’s powers to publicise an offence against
this Act; or
(b) prevent anyone else from publicising an offence against this Act;
or
(c) affect any obligation (however imposed) on anyone to publicise an
offence against this Act.
(1) The Regulator may accept a written undertaking given by a person in
connection with a matter relating to:
(a) complying with a WELS standard; or
(b) complying with a registration condition (see subsection
27(2)).
(2) The person may withdraw or vary the undertaking at any time, but only
with the consent of the Regulator.
(1) If the Regulator considers that a person who gave an undertaking under
section 42 has breached any of its terms, the Regulator may apply to the
Federal Court for an order under subsection (2).
(2) If the Federal Court is satisfied that the person has breached a term
of the undertaking, the Court may make one or more of the following
orders:
(a) an order directing the person to comply with that term of the
undertaking;
(b) an order directing the person to pay to the Commonwealth an amount up
to the amount of any financial benefit that the person has obtained directly or
indirectly and that is reasonably attributable to the breach;
(c) any order that the Court considers appropriate directing the person to
compensate any other person who has suffered loss or damage as a result of the
breach;
(d) any other order that the Court considers appropriate.
(1) If a person has engaged, is engaging or is proposing to engage in
conduct that constituted, constitutes or would constitute, an offence against
this Act, the Federal Court may, on the application of the Regulator, grant an
injunction:
(a) restraining the person from engaging in the conduct; or
(b) requiring the person to do an act or thing.
(2) On an application, the Court may, if it thinks it appropriate, grant
an injunction by consent of all parties to the proceedings, whether or not the
Court is satisfied that the person has engaged, is engaging or is proposing to
engage in any conduct that constituted, constitutes or would constitute, an
offence against this Act.
(3) The Court may, if it thinks it desirable, grant an interim injunction
pending its determination of an application.
(4) The Court is not to require the Regulator or anyone else, as a
condition of granting an interim injunction, to give an undertaking as to
damages.
(5) The Court may discharge or vary an injunction it has
granted.
(6) The power to grant or vary an injunction restraining a person from
engaging in conduct may be exercised:
(a) whether or not it appears to the Court that the person intends to
engage again, or to continue to engage, in such conduct; and
(b) whether or not the person has previously engaged in such
conduct.
(7) The power to grant or vary an injunction requiring a person to do an
act or thing may be exercised:
(a) whether or not it appears to the Court that the person intends to
refuse or fail again, or to continue to refuse or fail, to do that act or thing;
and
(b) whether or not the person has previously refused or failed to do that
act or thing and whether or not there is an imminent danger of substantial
damage to any person if the person refuses or fails to do that act or
thing.
(1) The Regulator may, by writing, appoint any of the following as a WELS
inspector:
(a) an officer or employee of an agency of the Commonwealth;
(b) an officer or employee of an agency of a State or Territory.
(2) However, the Regulator must not appoint an officer or employee of an
agency of a State or Territory as a WELS inspector without the agreement of the
State or Territory.
(3) In exercising his or her powers or performing his or her functions a
WELS inspector must comply with any direction of the Regulator.
Note: Part 7.8 of the Criminal Code provides
offences in relation to causing harm to, and impersonation and obstruction of,
Commonwealth public officials.
(1) The Regulator must issue an identity card to each WELS
inspector.
(2) The identity card must:
(a) be in the form prescribed by the regulations; and
(b) contain a recent photograph of the WELS inspector.
(3) A person commits an offence if:
(a) the person has been issued with an identity card; and
(b) the person ceases to be a WELS inspector; and
(c) the person does not return the identity card to the Regulator as soon
as practicable.
Penalty: 1 penalty unit.
(4) A WELS inspector must carry his or her identity card at all times when
exercising powers or performing functions as a WELS inspector.
(5) A WELS inspector is not entitled to exercise any powers under this
Part in relation to premises if:
(a) the occupier of the premises has required the WELS inspector to
produce his or her identity card for inspection by the occupier; and
(b) the WELS inspector fails to comply with the requirement.
A WELS inspector may exercise the powers set out in this Division for the
following purposes:
(a) determining whether a person is complying with this Act or the
regulations;
(b) investigating a possible offence against this Act or the
regulations.
(1) For the purposes set out in section 47, a WELS inspector may do
one or more of the following in a public area of WELS business premises when the
premises are open to the public:
(a) inspect WELS products;
(b) purchase any WELS product that is available for sale;
(c) inspect or collect written information, advertising or any other
document that is available, or made available, to the public;
(d) discuss product features with any person;
(e) observe practices relating to the supply of products.
(2) Subsection (1) does not affect any right of the occupier of the
premises to refuse to allow a WELS inspector to enter, or remain on, the
premises.
(1) A WELS inspector may enter WELS premises and exercise the powers set
out in subsection (3) if the occupier of the premises consents to the entry
and the exercise of those powers.
(2) Before obtaining consent, the WELS inspector must inform the occupier
that he or she may refuse consent, or withdraw consent, at any time.
(3) For the purposes set out in section 47, a WELS inspector who
enters WELS premises in accordance with subsection (1) may do one or more
of the following:
(a) search the premises and any thing (including a vehicle) on the
premises;
(b) inspect, examine, take measurements of or conduct tests on any thing
on the premises;
(c) take photographs, make video or audio recordings or make sketches of
the premises or any thing on the premises;
(d) inspect any book, record or document on the premises;
(e) take extracts from or make copies of any such book, record or
document;
(f) take onto the premises such equipment and materials as the WELS
inspector requires for the purposes of exercising powers in relation to the
premises;
(g) operate equipment on the premises for the purposes of gaining access
to a document or record relating to one or more WELS products.
The occupier of WELS premises does not commit an offence if:
(a) the occupier refuses to allow a WELS inspector to enter, or remain on,
the premises; and
(b) the WELS inspector does not have a warrant to enter the
premises.
(1) A WELS inspector may enter WELS premises and exercise the powers set
out in subsection (2) if the WELS inspector has a warrant for the
entry.
Note: Division 3 deals with applications for
warrants.
(2) For the purposes set out in section 47, a WELS inspector who
enters WELS premises under warrant may do one or more of the
following:
(a) exercise one or more of the powers set out in subsection
49(3);
(b) require any person on the premises to:
(i) answer any questions put by the WELS inspector; and
(ii) produce any book, record or document requested by the WELS
inspector;
(c) seize or secure any evidential material on the premises.
(3) A person commits an offence if:
(a) the person is required to answer a question or produce a book, record
or document under paragraph (2)(b); and
(b) the person does not answer the question or produce the book, record or
document.
Penalty: Imprisonment for 6 months.
(1) A WELS inspector must, before entering WELS premises under a
warrant:
(a) announce that he or she is authorised to enter the premises;
and
(b) give any person on the premises an opportunity to allow entry to the
premises.
(2) A WELS inspector is not required to comply with subsection (1) if
he or she believes on reasonable grounds that immediate entry to the premises is
required to ensure that the effective execution of the warrant is not
frustrated.
(1) If a warrant in relation to WELS premises is being executed and the
occupier of the premises is present at the premises, the WELS inspector
must:
(a) give a copy of the warrant to the occupier; and
(b) identify himself or herself to the occupier.
(2) The copy of the warrant does not need to include the signature of the
magistrate who issued the warrant.
A person commits an offence if:
(a) the person is the occupier of WELS premises; and
(b) a WELS inspector enters the premises under a warrant; and
(c) the person does not provide the WELS inspector with all reasonable
facilities and assistance for the effective execution of the warrant.
Penalty: 30 penalty units.
(1) If a WELS inspector seizes or secures evidential material on WELS
premises, the WELS inspector must give the occupier of the premises a receipt
for the material.
(2) The Regulator may make copies of the material.
(3) The Regulator may examine or test the material, even though that might
result in damage or destruction of the material or a reduction in its
value.
(4) The Regulator must return or release the material when the first of
the following occurs:
(a) the material is no longer needed for the purposes for which it was
seized or secured;
(b) the period of 90 days that begins on the day on which the material was
seized or secured ends.
(1) Despite paragraph 55(4)(b), the Regulator may:
(a) apply to a magistrate for an order allowing possession or control of
evidential material for such further period as is specified in the order;
and
(b) if the magistrate makes such an order—so retain possession or
control of the material.
(2) In determining the application, the magistrate must allow the owner of
the material to appear and be heard.
(3) The magistrate must not make an order allowing possession or control
of the material for a further period unless the magistrate is satisfied that the
order is necessary for the purposes of prosecuting an offence against this
Act.
If the Regulator cannot, despite making reasonable efforts, locate the
owner of evidential material, the Regulator may dispose of the material in such
manner as the Regulator thinks appropriate.
Application for warrant
(1) A WELS inspector may apply to a magistrate for a warrant to enter WELS
premises.
Issue of warrant
(2) The magistrate may issue the warrant if the magistrate is satisfied,
by information on oath or affirmation, that it is necessary to enter the WELS
premises for one or more of the following purposes:
(a) determining whether a person is complying with this Act or the
regulations;
(b) investigating a possible offence against this Act or the
regulations.
(3) However, the magistrate must not issue the warrant unless the WELS
inspector or some other person has given to the magistrate, either orally or by
affidavit, such further information (if any) as the magistrate requires
concerning the grounds on which the issue of the warrant is being
sought.
Content of warrant
(4) The warrant must:
(a) authorise the WELS inspector to enter the premises using such
assistance and such force to enter the premises as is necessary and reasonable;
and
(b) state whether the entry is authorised to be made at any time of the
day or night or during specified hours of the day or night; and
(c) specify the day (not more than one week after the issue of the
warrant) on which the warrant ceases to have effect; and
(d) state the purpose for which the warrant is issued.
Application for warrant
(1) If, in an urgent case, a WELS inspector considers it necessary to do
so, the WELS inspector may apply to a magistrate by telephone, fax or other
electronic means for a warrant under section 58.
(2) The magistrate may:
(a) require communication by voice to the extent that it is practicable in
the circumstances; and
(b) make a recording of the whole or any part of any such communication by
voice.
(3) Before applying for the warrant, the WELS inspector must prepare an
information of the kind mentioned in subsection 58(2) that sets out the grounds
on which the warrant is sought.
(4) If it is necessary to do so, the WELS inspector may apply for the
warrant before the information is sworn or affirmed.
Issue of warrant
(5) If the magistrate is satisfied:
(a) after having considered the terms of the information; and
(b) after having received such further information (if any) as the
magistrate requires concerning the grounds on which the issue of the warrant is
being sought;
that there are reasonable grounds for issuing the warrant, the magistrate
may complete and sign the same warrant that the magistrate would issue under
section 58 if the application had been made under that section.
Obligations of magistrate and inspector once warrant
issued
(6) If the magistrate completes and signs the warrant:
(a) the magistrate must:
(i) tell the WELS inspector what the terms of the warrant are;
and
(ii) tell the WELS inspector the day on which and the time at which the
warrant was signed; and
(iii) tell the WELS inspector the day (not more than one week after the
magistrate completes and signs the warrant) on which the warrant ceases to have
effect; and
(iv) record on the warrant the reasons for issuing the warrant;
and
(b) the WELS inspector must:
(i) complete a form of warrant in the same terms as the warrant completed
and signed by the magistrate; and
(ii) write on the form the name of the magistrate and the day on which and
the time at which the warrant was signed.
(7) The WELS inspector must also, not later than the day after the day of
expiry or execution of the warrant, whichever is the earlier, send to the
magistrate:
(a) the form of warrant completed by the WELS inspector; and
(b) the information referred to in subsection (3), which must have
been duly sworn or affirmed.
(8) When the magistrate receives those documents, the magistrate
must:
(a) attach them to the warrant that the magistrate completed and signed;
and
(b) deal with them in the way in which the magistrate would have dealt
with the information if the application had been made under
section 58.
Authority of warrant
(9) A form of warrant duly completed under subsection (6) is
authority for the same powers as are authorised by the warrant signed by the
magistrate.
(10) If:
(a) it is material, in any proceedings, for a court to be satisfied that
an exercise of a power was authorised by this section; and
(b) the warrant signed by the magistrate authorising the exercise of the
power is not produced in evidence;
the court must assume, unless the contrary is proved, that the exercise of
the power was not authorised by such a warrant.
A person is a person who has WELS information if the
Regulator believes, on reasonable grounds, that the person is capable of giving
information, or producing books, records or documents, relevant for the purposes
of investigating or preventing an offence against this Act.
(1) The Regulator may, by written notice, require a person who has WELS
information to give to the WELS inspector specified in the notice, and in the
manner and within the period specified in the notice:
(a) such information as is specified in the notice; or
(b) any book, record or document that is specified in the
notice.
The period must end not less than 14 days after the notice is
given.
(2) A notice under subsection (1) must set out the effect of
sections 137.1 and 137.2 of the Criminal Code.
(3) A person commits an offence if:
(a) the person is required to give information or a book, record or
document to a WELS inspector under subsection (1); and
(b) the person does not give the WELS inspector the information, book,
record or document.
Penalty: Imprisonment for 6 months.
(1) The Regulator may, by written notice, require a person who has WELS
information to appear before the WELS inspector specified in the notice, at a
time and place specified in the notice:
(a) to answer any questions put by the WELS inspector; and
(b) to produce to the WELS inspector such books, records or documents as
are referred to in the notice.
The time must not be earlier than 14 days after the notice is
given.
(2) A notice under subsection (1) must set out the effect of
sections 137.1 and 137.2 of the Criminal Code.
(3) A person commits an offence if:
(a) the person is required to appear before a WELS inspector under
subsection (1); and
(b) the person does not appear before the WELS inspector.
Penalty: Imprisonment for 6 months.
(4) A person commits an offence if:
(a) the person is required under subsection (1) to appear before a
WELS inspector; and
(b) when appearing before the WELS inspector, the person does
not:
(i) answer a question put by the WELS inspector; or
(ii) produce a book, record or document to the WELS inspector as required
by notice given under that subsection.
Penalty: Imprisonment for 6 months.
Nothing in this Part affects the right of a person to refuse to answer a
question, give information, or produce a document, on the ground that the answer
to the question, the information, or the production of the document, might tend
to incriminate him or her or make him or her liable to a penalty.
(1) The WELS Account is established.
(2) The WELS Account is a Special Account for the purposes of the
Financial Management and Accountability Act 1997.
The following must be credited to the WELS Account:
(a) amounts equal to amounts received by the Commonwealth from the States
and Territories for the purposes of the WELS scheme;
(b) amounts equal to amounts received by the Commonwealth in connection
with the performance of the Regulator’s functions under this Act, the
regulations or a corresponding State-Territory law;
(c) amounts equal to income received by the Commonwealth from the
investment of money from the Account;
(d) amounts equal to money received by the Commonwealth in relation to
property paid for with money from the Account;
(e) amounts equal to amounts of any gifts given or bequests made for the
purposes of the Account.
Note: An Appropriation Act provides for amounts to be
credited to a Special Account if any of the purposes of the Account is a purpose
that is covered by an item in the Appropriation Act.
The purpose of the WELS Account is to make payments:
(a) to further the objects of this Act (as set out in section 3);
and
(b) otherwise in connection with the performance of the Regulator’s
functions under this Act, the regulations or a corresponding State-Territory
law.
The Regulator may charge fees for services provided by, or on behalf of,
the Regulator in the performance of the Regulator’s functions.
The following amounts may be recovered in a court of competent
jurisdiction as debts due to the Commonwealth:
(a) fees payable to the Commonwealth under this Act, the regulations or a
corresponding State-Territory law;
(b) amounts payable to the Commonwealth in connection with the performance
of the Regulator’s functions.
(1) Each of the following decisions is a reviewable
decision:
(a) a decision by the Regulator to refuse to register a WELS product under
section 29;
(b) a decision by the Regulator to cancel or suspend the registration of a
WELS product under section 31.
(2) A person whose application to register a WELS product is refused under
section 29 is the affected person in relation to the decision
to refuse to register the WELS product.
(3) The person on whose application a WELS product was registered is the
affected person in relation to a decision to cancel or suspend
that registration under section 31.
(1) The Regulator must, as soon as practicable after making a reviewable
decision, cause a notice in writing to be given to the affected person in
relation to the decision, containing:
(a) the terms of the decision; and
(b) the reasons for the decision; and
(c) a statement setting out particulars of the person’s review
rights.
(2) A failure to comply with the requirements of subsection (1) in
relation to a decision does not affect the validity of the decision.
(1) The affected person in relation to a reviewable decision (other than a
decision made by the Regulator personally) may apply in writing to the Regulator
for review (the internal review) of the decision.
(2) An application for internal review must be made within 30 days after
the day on which the decision first came to the notice of the applicant, or
within such further period (if any) as the Regulator, either before or after the
end of that period, allows.
(3) The Regulator must, on receiving an application, review the reviewable
decision personally.
(4) The Regulator may:
(a) make a decision affirming, varying or revoking the reviewable
decision; and
(b) if the Regulator revokes the decision, make such other decision as the
Regulator thinks appropriate.
(1) Application may be made to the Administrative Appeals Tribunal for
review of the following decisions:
(a) a reviewable decision made by the Regulator personally;
(b) an internal review decision made by the Regulator under
section 71.
(2) An application under subsection (1) may be made only by the
affected person concerned.
(3) Subsection (2) has effect despite subsection 27(1) of the
Administrative Appeals Tribunal Act 1975.
(1) This section applies if:
(a) as a result of electronic equipment being operated as mentioned in
section 49:
(i) damage is caused to the equipment; or
(ii) the data recorded on the equipment is damaged; or
(iii) programs associated with the use of the equipment, or with the use
of the data, are damaged or corrupted; and
(b) the damage or corruption occurs because:
(i) insufficient care was exercised in selecting the person who was to
operate the equipment; or
(ii) insufficient care was exercised by the person operating the
equipment.
(2) The Commonwealth must pay the owner of the equipment, or the user of
the data or programs, such reasonable compensation for the damage or corruption
as the owner or user agree on.
(3) However, if the owner or user and the Commonwealth fail to agree, the
owner or user may institute proceedings in the Federal Court for such reasonable
amount of compensation as the Court determines.
(4) In determining the amount of compensation payable, regard is to be had
to whether the occupier of the premises, or the occupier’s employees and
agents, if they were available at the time, provided any appropriate warning or
guidance on the operation of the equipment.
(5) Compensation is payable out of money appropriated by the
Parliament.
(1) If:
(a) apart from this section, the operation of this Act would result in the
acquisition of property from a person otherwise than on just terms;
and
(b) the acquisition would be invalid because of paragraph 51(xxxi) of the
Constitution;
then the Commonwealth is liable to pay compensation of a reasonable amount
to the person in respect of the acquisition.
(2) If the Commonwealth and the person do not agree on the amount of the
compensation, the person may take proceedings in the Federal Court for the
recovery from the Commonwealth of such reasonable amount of compensation as the
Court determines.
(3) Compensation is payable out of money appropriated by the
Parliament.
(1) The Regulator must, as soon as practicable after the end of each
financial year, prepare and give to the Commonwealth Minister a report on the
operation of the WELS scheme during the year.
(2) The Minister must cause a copy of the report:
(a) to be tabled in each House of the Parliament within 15 sitting days of
the day on which the report is given to the Minister; and
(b) to be given to each participating State and Territory.
(1) The Commonwealth Minister must cause an independent review of the
operation of the WELS scheme to be undertaken as soon as possible after the
fifth anniversary of the commencement of this section.
(2) The persons who undertake the review must give the Commonwealth
Minister a written report of the review.
(3) The Commonwealth Minister must cause a copy of the report of the
review:
(a) to be tabled in each House of the Parliament within 15 sitting days of
the day on which the report is given to the Commonwealth Minister; and
(b) to be given to each participating State and Territory.
(4) In this section:
independent review means a review undertaken by persons
who:
(a) in the Commonwealth Minister’s opinion possess appropriate
qualifications to undertake the review; and
(b) include one or more persons who are not APS employees.
(1) The Governor-General may make regulations prescribing
matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving
effect to this Act.
(2) Without limiting subsection (1), the regulations may:
(a) prescribe fees in respect of matters under this Act (including the
regulations); and
(b) prescribe penalties of not more than 50 penalty units for offences
against the regulations.